Do you believe Michael Cohen?

Imagine that you are a juror in the trial of Donald Trump. In order to convict, you have to believe that he was a part of the scheme to falsify corporate records. There's a good bit of circumstantial evidence of that, and then there's Michael Cohen, whose testimony places Trump squarely in the thick of things, directing Cohen’s actions.

"He approved it."

It was one of the last pieces of testimony Cohen gave on Monday.

Some folks have suggested that the prosecution could have tried its case without putting Cohen on the witness stand. I disagree. Cohen’s testimony is essential to establishing the former President’s involvement. The People face a high burden of proof, proving that Donald Trump is guilty beyond a reasonable doubt. Without Cohen’s testimony the case would be close, and that’s not where prosecutors want to be when their case goes to the jury.

Judges instruct juries on the law they must apply to the facts to decide a case. Often, judges explain that proof beyond a reasonable doubt is the kind of proof you would need to act on one of the most serious issues in your own life. It is not proof beyond any speculative doubt, but it is still a very high burden. Here, the jury has to believe Michael Cohen’s three simple words—"He approved it”—in order to convict.

Cohen's testimony is partially corroborated by the witnesses who testified before he did. That was the strategy behind the People’s case: corroborate every detail you can about Cohen's testimony in advance, so that the leap of faith you ask the jury to take is a small one, more like a couple of logical steps in a straight line than a leap across a chasm.

Cohen confirmed the overwhelming testimony that false business records were created in this case. He testified that he created monthly invoices and submitted them for “services rendered” when, in fact, he wasn’t providing any services. “Was this a false record?” prosecutor Susan Hoffinger asked Cohen. “Yes, ma’am,” was the response. Cohen also testified the check stubs were false records. But none of this testimony was in dispute. It had been pre-corroborated in testimony from others. The Prosecution showed through Cohen and others that the payments were reimbursement for Cohen’s payment to Stormy Daniels, which was a campaign-related expense.

The Trump defense that has been offered so far stems from lawyer Todd Blanche’s comments in opening statement that it wasn’t true, there was no sexual encounter between Daniels and Trump. Blanche told jurors, “The $35,000 a month was not a payback to Mr. Cohen for the money that he gave to Ms. Daniels.” Trump didn't know the payments were reimbursement for Stormy Daniel’s hush money and didn't approve them, and he thought they were all legal fees. Is the argument that Trump believed it was legal fees enough to create reasonable doubt? Is it possible Cohen and Weisselberg would have gone rogue and paid Stormy Daniels without approval from Trump, risking the wrath, and for Cohen, the possibility he would never be reimbursed, of Donald Trump?

Mid-morning, prosecutor Susan Hoffinger walked Cohen through the litany of his lies. As we’ve discussed, part of this is to show the jury that they are being candid about who Cohen is and the baggage he carries, including a guilty plea to lying to Congress. But it’s also key testimony because Cohen, in his words, was lying to “protect Trump.” Cohen testified that in 2018, as the Stormy Daniels story became public, he issued a false statement designed to protect Trump, and he told Trump about it in advance. Cohen spoke publicly, saying he’d paid the money to Daniels on Trump’s behalf but without his knowledge. Hoffinger asked Cohen how Trump responded when he told him he was going to do this. The answer according to Cohen: “that’s good, good.” That’s one of several statements Cohen made about his personal interactions with Trump that confirm the latter’s role in the scheme. The meetings may have been confirmed by other witnesses who know they took place, or calls confirmed by phone records, but it’s Cohen alone who testifies to what was said.

Here are the relevant parts of the pattern jury instructions the Judge will model his instructions on. He’ll tell the jury:

“Under our law, a person is guilty of falsifying business records in the first degree when with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: … makes or causes a false entry in the business records of an enterprise …

What does “intent” mean? The pattern instructions say it “means conscious objective or purpose. Thus, a person acts with intent to defraud when his or her conscious objective or purpose is to do so.”

The Judge will instruct the jury that, “In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, each of the following two elements:

1. That on or about (date) , in the county of (county) , the defendant, (defendant's name), … made or caused a false entry in the business records of an enterprise ...

2. That the defendant did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof …

The Judge will tell the jury that they must convict if they conclude that prosecutors have proven those two elements beyond a reasonable doubt.

What do you think? If you were a juror, would you vote to convict? Or do you have concerns? Are there places where you think the government hasn’t met its burden? The question is a little bit disingenuous in that, unlike the jury, we are not watching the trial but rather, reading about it in notes from courtroom observers. (I will try to avoid my usual harangue about how out of step it is with reality not to have cameras in the courtroom in 2024), But let's engage in the exercise. Put yourself in the place of a juror. Imagine the very high burden the court has imposed upon you to do justice. With Cohen's direct testimony complete and cross-examination underway, where do you stand and why?

Were in this together,

Joyce